Capital Punishment: Legal Aspects - Early Constitutional Intervention

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Before the twentieth century, there was no intimation from the U.S. Supreme Court that the federal constitution placed any special restrictions, substantive or procedural, on the use of capital punishment by the states or the federal government. Rather, it was assumed that the scope of capital statutes, the conduct of capital trials, and the manner of execution were all policy choices entrusted completely to the states or to the political branches of the federal government.

The first significant constitutional ruling regarding the use of capital punishment arose in an unusual and unusually fraught context—the trial of the Scottsboro Boys, nine young black men accused of raping two white women on a freight train near Scottsboro, Alabama, in the early 1930s. The men were arrested, indicted, and tried in short order, and convicted and sentenced to death on the basis of extremely flimsy evidence after extremely abbreviated legal proceedings. The case led to a number of appeals in both state and federal courts, but the most famous and legally significant ruling to result from the case was the Supreme Court's holding that, at least in capital cases, trial judges had an obligation to ensure that indigent defendants who could not adequately represent themselves be appointed counsel to represent them (Powell v. Alabama, 287 U.S. 45 (1932)). This requirement of appointed counsel was not broadly extended to noncapital defendants until the 1960s. While the Scottsboro case is justly famous both for its illumination of the treatment of black defendants in southern criminal courts and for its anticipation of the later use of the due process clause of the Fourteenth Amendment to "incorporate" the Bill of Rights to apply to the states as well as the federal government, it also is a landmark in the legal regulation of capital punishment. The Supreme Court's ruling signaled, for the first time, that the federal constitution might specially limit the use of the death penalty, long thought to be an unfettered prerogative of state criminal justice systems.

Perhaps because Scottsboro was so distinctive a case, the Supreme Court did not quickly move to elaborate upon the U.S. Constitution's significance in capital cases. Indeed, except for holding in 1947 that a botched electrocution that failed to result in death did not constitutionally bar a second try (State of Louisiana ex rel. Francis v. Resweber, 330 U.S. 853 (1947)), the Court did not make any further significant constitutional rulings regarding capital punishment until the late 1960s. The Warren Court, headed by Chief Justice Earl Warren, revolutionized criminal procedure generally during the 1960s by holding that almost all of the specific criminal procedural protections contained in the Bill of Rights were applicable not only to federal cases but to state criminal trials as well. The Warren Court also broadly construed these constitutional protections, requiring, for example, that arrested suspects be given warnings before being questioned and that attorneys be present during many line-ups (Miranda v. Arizona, 384 U.S. 436 (1966); United States v. Wade, 388 U.S. 218 (1967)). In addition to seeing such revolutionary expansion of the constitutional rights of the accused, the 1960s were also a time of declining popular support for the use of capital punishment. A Gallup poll conducted in 1966 showed for the first (and it has turned out to be the only) time in the twentieth century that more of those polled opposed capital punishment for murder than supported it. At the same time, the NAACP Legal Defense Fund was successfully pursuing a "moratorium" strategy in criminal courts around the country, attempting to prevent any executions from going forward by raising every legal claim conceivably available. It is not surprising, therefore, that the Supreme Court chose this time to reenter the death penalty debate.

In 1968, the last year of the Warren Court, the Court gave a small but significant victory to the abolitionist forces when it ruled that states could not automatically exclude from capital trial juries all of those with conscientious scruples against capital punishment, as many jurisdictions did as a matter of course. (Witherspoon v. Illinois, 391 U.S. 510 (1968)). Rather, such potential jurors can now be removed for cause only if their attitudes about capital punishment would prevent or substantially impair the performance of their duties as jurors. Abolitionist litigators were emboldened by this ruling, which many hoped or believed would lead to the constitutional abolition of capital punishment entirely.

These hopes were crushed, however, only a few years later when, in 1971, the Supreme Court heard and rejected the first sweeping challenge to the American practice of capital punishment. The Court held that the due process clause of the Fourteenth Amendment was not violated by the existence of completely standardless capital sentencing procedures—in which the sentencing jury was told it had absolute discretion to
impose a sentence of life or death for whatever reasons it deemed appropriate—nor did the constitution require that capital trials and sentencing procedures be bifurcated into two separate hearings (McGautha v. California, 402 U.S. 183 (1971)). This decisive defeat seemed to mark the end of constitutional challenges to the administration of capital punishment.

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